Free Markets, Free People

The Grey Lady Gets It Wrong Again

Editorializing today, the New York Times says:

Attorney General Eric Holder Jr. took a bold and principled step on Friday toward repairing the damage wrought by former President George W. Bush with his decision to discard the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.

From that entirely unnecessary policy (the United States had the tools to detain, charge and bring terrorists to justice) flowed a terrible legacy of torture and open-ended incarceration. It left President Obama with yet another mess to clean up on an urgent basis.

Of course this minimizes the arguments to Bush did or didn’t follow “the nation’s well-established systems of civilian and military justice in the treatment of detainees captured in antiterrorist operations.”

In fact there were no “well-established systems” in existence at all as we found out. Anyone who remembers what happened as we began to take in these “detainees captured in antiterrorist operations” knows that no system at all existed. There was a tremendous amount of debate and legal research done to try to determine what sort of status these people should or could be held under. And that’s not been established in full to this day.

For instance, the NYT claims that “open-ended incarceration” has been ended by the Obama administration’s move. But that’s simply not true. As the Washington Post reports:

That leaves up to 75 individuals remaining at Guantanamo who could continue to be held under the laws of war because they are deemed too dangerous to release, but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

So it appears, given the evidence, that open-ended incarcerations continue. Why? Because we still don’t have a comprehensive legal policy with which to deal with these people. As the Obama administration found out when it tried to close Guantanamo, the legal questions were indeed complex and unresolved. And, at least 75 individuals continue to face the possibility of open-ended incarceration because of that – a year into the Obama administrations tenure.

The Times continues:

On Friday, Attorney General Holder announced that Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, and four others accused in the plot will be tried in a fashion that will not further erode American justice or shame Americans. It promises to finally provide justice for the victims of 9/11.

Mr. Holder said those prisoners would be prosecuted in federal court in Manhattan. It was an enormous victory for the rule of law, a major milestone in Mr. Obama’s efforts to close the detention camp at Guantánamo Bay, Cuba, and an important departure from Mr. Bush’s disregard for American courts and their proven ability to competently handle high-profile terror cases.

Well, that’s the official spin, I suppose, but my guess is it has more to do with leftist politics than any concern for justice and I think James Taranto has the best take on what is most likely about this move:

As Morris Davis, a retired military prosecutor, argued the other day in The Wall Street Journal, under the administration’s plan, “the standard of justice for each detainee will depend in large part upon the government’s assessment of how high the prosecution’s evidence can jump and which evidentiary bar it can clear.” Detainees will get a “fair trial” in civilian court only if their conviction is assured. By implication, that suggests that detainees who go before military commissions will get an unfair trial. Presumably the administration would deny this and say the commission trials will be fair too. But if so, why is such a trial not good enough for Khalid Sheikh Mohammad?

The answer seems to be that the administration is conducting a limited number of civilian trials of high-profile terrorists for show, so as to win “credibility” with the international left. These trials will differ from an ordinary show trial in that the process will be fair even though the verdict is predetermined. But people who wrongly think that either military commissions or detention without trial are unjust will not be satisfied with some detainees getting civilian trials–unless, of course, they are simply eager to be impressed by Barack Obama.

I think he’s exactly right. These are indeed show trials, considered safe enough (the evidence is overwhelming enough that classified evidence won’t be necessary) to ensure conviction. These trials will have little to do with “justice”, but they will have much to do with shutting up or at least muffling the leftist base which still isn’t satisfied with what the administration has accomplished in terms of closing Gitmo. These trials buy the administration more time.

Note also what Tranto says about the implication that exists concerning military tribunals. The Times says it out loud:

Regrettably, the decision fell short of a clean break. Five other Guantánamo detainees are to be tried before a military commission for the 2000 bombing of the Navy destroyer Cole, including Abd al-Rahim al-Nashiri, who is accused of planning the attack.

The rules for the commissions were recently revised to bring them closer to military standards. And Mr. Holder cites the fact that the Cole bombing was an attack on a military target to justify a military trial. But that does not cure the problem of relying on a new system outside the regular military justice system. Nor does it erase the appearance that the government is forum-shopping to win convictions. Most broadly, it fails to establish a clear framework for assigning cases to regular courts or military commissions going forward.

The rules revisions the Times cites were cosmetic at best. But note that the editorial doesn’t mince words concerning its disdain for the military tribunal. The fact that those being tried before the tribunal actually attacked a military target doesn’t stop the Times from claiming “forum shopping” as the key to their continued use.

So let’s review – KSM is going to NY for trial. That, supposedly, is a clean break with the awful Bush years and open-ended incarceration and military tribunals. Except it’s not. 75 remain in open-ended incarceration at Gitmo. And 5 will face justice in front of military tribunals.

In fact, the only thing that has happened is a couple of show trials, which could just as easily been done in Guantanamo (or if they want a Federal Court – how about Miami), are going to be held in an attempt to “prove” that things have changed.

The Times is obviously fooled into believing that. And, that proves one thing – that politically at least, the Obama adminstration got this one right.



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15 Responses to The Grey Lady Gets It Wrong Again

  • So whem KSM goes on trial and the defense starts talking  about all the “torture” and waterboarding etc. he went through……does anyone else expect public approval for those methods to actually improve?

    I hope KSM gets acquitted.  Seems to be the outcome that New Yorkers and Obama deserve

  • Was the Times really fooled into buying the administration’s line?  I think that they understand the situation just fine, and are happy to spin it in the same manner as the administration.

  • Whether it’s in New York or not is irrelevant.

    This is not something that belongs in a civil (civilian) criminal court.


    It’s not a criminal case. It is a war crimes case.

    This is a very serious matter. Like, to the bone of the Republic serious.

    The metaphor “circus” is being used to describe it, but that’s not close to how bad it is. It tramples on the efficacy of the proper setting for it, the military tribunal or commission (even as, whimsically, other cases will go before tribunals) even as it rains monkey wrenches into the civil criminal proceeding.

    Just consider this: What evidence in this case, in terms of civilian criminal procedure, is not the fruit of a poisoned tree? Where are the warrants issued on probable cause for searches and arrests? Where is the right to legal counsel? Was KSM told of his right to remain silent while on the waterboard? That infinite hairball need not be picked apart in a military tribunal.

    This, I’m convinced, was not a stupid decision on the part of Obama and Holder, it was a malicious decision that gives the shitheel radical lawyers and the terrorists an open-ended platform from which to car bomb the American legal system and the national security apparatus. It is also a decision meant to gratify the worst animals on the Far Left. They will hail it as “democracy in action” or “real justice” when it is precisely the opposite. It is an attack on democracy and justice.

    It is also an abdication of the proper role of commander-in-chief to hold matters of war and captured combatants separate from civilian courts.

    Its rottenness is so deep that we might never get to the bottom of it.

    • Obama can let the defense lawyers attack the past Administration and current government agencies like the CIA in ways that are too obvious if they did it from within.
      There’s also the fact this trial will marshal an army of lawyers on both sides.  A legal bonanza on the tax payer’s dime.

  • When does the trial start? I seriously question the timing, because it looks so boneheaded.

  • The first thing the defense will do is try for a change of venue. Or maybe a dismissal on the gtrounds that it is impossible for the defendants to get a fair trial because the jury pool is irredeemably tainted. Other motions will follow, if only to lay the groundwork for an appeal. There may be a trial after Obama is out of office. The appeals will take years.

    The world will look on in stunned amazement, awed that any nation would put itself through such a prolonged mockery of its own justice system. And God help us, and the prosecutor, if a reversible error is made somewhere along this convoluted trail. 

  • Anyone who remembers what happened as we began to take in these “detainees captured in antiterrorist operations” knows that no system at all existed.

    The military commission system already existed.  That’s one of the things the Court rebuked the president for: there was a legal system in place that the president ignored in favor of his own creation.

    • The military commission system existed to try other uniformed military prisoners of warring nations. Not, as stated, “detainees captured in antiterrorist operations”.

      • Then it’s a civilian affair, it has to be one way or the other.
        McQ said this: “….what sort of status these people should or could be held under.”
        The gov’t of a country that hasn’t the legal or moral authority is trying to determine how to most successfully victimize its potential victims, after the fact.
        Some of you people need to zoom back, way, way back and take a good hard look at what you’re arguing about – it’s stuck right up against your eyeballs and you can’t see it.
        Whatever this gov’t does to others it will do to you.

        • Why is it a strictly civilian affair in that case? Terrorists are not official military, but they are also not official civilians. They’re a 3rd option – independent, non-uniformed combatants.  There was nothing wrong with doing anything we wanted to them in terms of handling their detention and “trial”

        • It is in no way, shape, or form a civilian affair.

        • They are part of a paramilitary organization supported by countries and individuals who want to maintain an appearance of’ ‘plausible deniability’.

  • “In fact there were no “well-established systems” in existence at all as we found out. Anyone who remembers what happened as we began to take in these “detainees captured in antiterrorist operations” knows that no system at all existed. ”

    An un-uniformed multi-nationality group of armed murderers is well-defined and covered by international laws against PIRACY.   Catch ’em,    try ’em by military board / “captain’s mast” and hang ’em from the yardarm.

  • There is also the fact that the Obama administration has proclaimed the power to keep detainees even if they are aquitted.

    Spencer Ackerman yesterday attended a Senate hearing at which the DOD’s General Counsel, Jeh Johnson, testified.  As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to give a real trial in a real court, the President has the power to continue to imprison them indefinitely even if they are acquitted at their trial. About this assertion of “presidential post-acquittal detention power” — an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties — Ackerman wrote, with some understatement, that it “moved the Obama administration into new territory from a civil liberties perspective.”  Law professor Jonathan Turley was more blunt:  “The Obama Administration continues its retention and expansion of abusive Bush policies — now clearly Obama policies on indefinite detention.”


    • Greenwald is, of course, a moron, but he unintentionally falls into the absurdity of trying these people in civilian courts.

      All combatants who are captured during a war can be detained until the end of hostilities, and with this particular type of war, that could mean a combatant will be detained for his entire life.

      But all of these combatants are also illegal combatants, which by definition is a war crime, for which they can be tried in front of a military tribunal and given a sentence. If they are found not guilty, then they can still be detained until the end of hostilities.

      Greenwald thinks that aquittal at a “real trial” (in a civil course) means they should be released and, but of course refuses to understand that these people are combatants — illegal combatants — and should not be given civilian trials in the first place.

      Yes, there are some situations where some people who fit the terrorist label will fit the criminal label as well and can be tried in a civilian court, but KSM is not one of those, and to treat him as if he is defies the logic of both civil and military justice.